Kanabar v Maganal Kanabar (Deceased) & Anor [2026] EWCA Civ 582

Judgment date: 15 May 2026

https://caselaw.nationalarchives.gov.uk/ewca/civ/2026/582

Baker LJ giving the lead judgment with Lewison and Yip LJJ agreeing. Appeal against the order of HHJ Rogers, in which he allowed an appeal against a financial remedy order made by DJ Birk where the appellant had died intestate after being granted permission to appeal and where no one was willing to apply for letters of administration.

Background

H married his first wife, A, in 1999. They had two daughters who are both now adults.

Between 2006 and 2008, H and A separated, and A moved out of the family home with the children. H filed a petition for divorce in 2009 and decree absolute was granted in 2010.

In 2012, H married his second wife, B. They had one daughter who was aged 12 at the time of the hearing.

It was not until September 2021, over 13 years after their separation, that H applied for financial relief in the divorce proceedings with A.

At a hearing in March 2023, DJ Mason invited H’s father to intervene in the proceedings due to issues relating to a potential beneficial interest in the assets, but he took no meaningful steps to comply with directions and DJ Birk eventually agreed to A’s application to proceed without a preliminary hearing issue.

The final hearing took place before DJ Birk in November 2023, resulting in a final order which provided for a slight departure from equality in A’s favour, and which did not deal with issues relating to H’s father’s potential interest in the assets.

H’s appeal and death

H filed a notice of appeal against the order, asserting that the district judge had erred, particularly in refusing to consider his father’s potential beneficial interest and in failing to give proper weight to the fact that the parties had separated some 17 years prior to the date of the final hearing.

Permission to appeal was granted and the appeal listed for hearing in September 2024. However, H died intestate on 29 July 2024.

At the hearing, A was represented by counsel, while B attended in person. B explained that she did not wish to become H’s personal representative, having found the circumstances following his death overwhelming, and that no other family member was willing to undertake the role.

Judge Rogers’ decision

HHJ Rogers identified the absence of a personal representative as an extremely complex procedural problem. He considered and rejected a number of possible courses, including a further adjournment, summary dismissal, and striking out the appeal under FPR 4.4(1). He was not persuaded that an appeal without a living appellant was necessarily without merit, nor did he consider that striking out would provide a satisfactory resolution.

Judge Rogers allowed H’s appeal, and, as a result, DJ Birk’s order was set aside.

A’s appeal to the Court of Appeal

A was given permission to appeal on four grounds:

1. The court erred in not striking out the appeal in circumstances where H had died and none of those who would benefit from the success of the appeal were willing to administer his estate.
2. The court was wrong to allow the appeal on the basis of assertions of beneficial interest that were improperly pleaded and would inevitably have failed.
3. The court was wrong to find that the district judge misapplied the law in respect of non-matrimonial property in circumstances where she rightly considered that she had to distribute that property to meet needs.
4. In the alternative, having allowed the appeal, the court was wrong not to have substituted a different order, thereby leaving the appellant with almost nothing from the marriage, and with no clear remedy under the Inheritance (Provision for Family and Dependants) Act 1975.

The Court of Appeal’s reasoning

The court allowed the appeal on Ground 1 and as a result found it neither necessary nor appropriate to consider Grounds 2 and 3. However, there was substantial discussion of Ground 4, albeit without a definitive conclusion.

Ground 1 of A’s appeal

The focus of the hearing of the appeal was on Ground 1, which raised the important point of principle as to what the court should do when an appellant, to whom permission to appeal has been granted, dies intestate with no person willing to apply for letters of administration.

At Cobb LJ’s direction, the Attorney General was asked to appoint an advocate to the court, to address:

• what the court ought to have done in such a circumstance;
• whether an appeal in these circumstances should have failed for want of an appellant, or alternatively;
• whether the court should have granted A’s application to strike out H’s appeal, either pursuant to FPR 4.4(1)(b) as an abuse of process, or pursuant to FPR 30.10, as there was a compelling reason to do so.

The court considered whether the procedural rules provided an alternative mechanism for representation. CPR 19.12(1), which permits proceedings to continue without a personal representative or allows one to be appointed, was inapplicable because the CPR does not apply to family proceedings. There was no equivalent provision in the FPR 2010, and FPR 9.26(b) could not assist, particularly as nobody was willing to represent the estate.

The court therefore rejected the judge’s view that the appeal remained properly constituted notwithstanding the absence of an active appellant, holding that ‘[t]here was no appellant with a legal personality and therefore no basis on which the appeal could properly proceed’; [72]. Since an adjournment to obtain letters of administration was unlikely to resolve the problem, the court found that the only appropriate course of action should have been to strike out the appeal under FPR 30.10, the absence of anyone capable of pursuing the appeal constituting a ‘compelling reason’. The court accordingly allowed Ground 1 and restored DJ Birk’s order.

Ground 4 of A’s appeal

Whilst declining to come to a definitive conclusion, the Court of Appeal also considered Ground 4 of A’s appeal, which concerned whether a financial remedies appeal survives the death of one party and, if so, the extent of the appellate court’s powers.

The court noted that under s 1(1) of the Law Reform (Miscellaneous Provisions) Act 1934, causes of action generally survive a party’s death, but that the orthodox position, derived from a number of decisions, in particular Sugden v Sugden [1957], is that financial remedy claims under the Matrimonial Causes Act 1973 are personal rights which end on death.

Barder v Caluori [1988] established a limited exception to this position: where a supervening event shortly after an order fundamentally undermines its basis, an appeal may proceed despite the death of a party. Subsequent cases have also allowed appellate courts to redetermine the financial provision to be made. However, the Supreme Court decision in Unger v Ul-Hasan [2023] confirmed that Barder is a ‘discrete but limited exception’ to the general rule, and that whilst the current law may cause injustice, wider reform is a matter for Parliament.

The unresolved issue which Ground 4 raised in this case was whether, where permission to appeal had been granted but a party subsequently died, the appellate court could set aside and substitute a new financial remedies order. This presented a complicated difficulty: since, in order for the death of a party to classify as a Barder event, it must have invalidated the fundamental assumption on which the order was made, it is arguable that only these kinds of cases should allow for the court to make a different provision following the death of a party.

However, if the court's powers are more limited in an appeal involving the death of a party which did not constitute a Barder event, this would leave the court capable of setting aside an order it has determined to be wrong, but not capable of redetermining the claim at all. Although FPR 30.11(1) might support a power to redetermine because the appellate court has the powers of the lower court, it could equally be argued that the death of the party would mean that the powers of the lower court had been wholly extinguished.

Since their decision in this instance turned on Ground 1, the court found it unnecessary to reach a conclusion on Ground 4, preferring to leave such a decision to a case where it fell for a definitive determination and where the court had the benefit of full arguments, including from representatives of the deceased’s estate. However, Baker LJ noted at [80] that there is ‘very considerable force in the views expressed by Mostyn J and Lord Leggatt in Unger’, and suggested that the forthcoming government consultation on matrimonial financial and cohabitation law may provide an opportunity for a review of such circumstances.